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CNN free-lancer ordered to testify in Lindh hearing

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  1. Protecting Sources and Materials

    NMU         VIRGINIA         Confidentiality/Privilege         Jul 15, 2002    

CNN free-lancer ordered to testify in Lindh hearing

  • A federal judge refused to recognize a reporter’s privilege not to testify in the accused American Taliban fighter’s hearing to suppress evidence.

A federal judge on July 12 ordered CNN free-lance reporter Robert Young Pelton to testify in a hearing for accused American Taliban John Walker Lindh.

The order became moot today after Lindh pleaded guilty to two charges of aiding the Taliban and carrying explosives.

Until he pleaded guilty, Lindh had been trying to suppress evidence from a criminal trial that was to begin in August. The evidence included a videotaped interview Pelton conducted with Lindh in an Afghanistan hospital in December 2001. Lindh subpoenaed Pelton to testify in a hearing that was to last most of this week.

U.S. District Judge T.S. Ellis III in Alexandria, Va., heard arguments about the subpoena on July 12.

Lindh’s attorneys argued that Pelton was acting as an agent of the U.S. government and should have informed Lindh of his Miranda rights before conducting the interview.

That argument puts all journalists in war zones in danger, media groups including the Reporters Committee for Freedom of the Press argued in a friend-of-the-court brief.

Ellis ruled that reporters do not enjoy a testimonial privilege when the journalist is not protecting confidential sources or is not the victim of government harassment.

“In my view, there is no privilege, and I don’t see the First Amendment as giving newsmen a testimonial privilege that other citizens do not enjoy,” Ellis said.

He disagreed that the subpoena would put Pelton and other foreign correspondents in danger.

“It isn’t the subpoena that puts him in danger,” Ellis said. “It’s the argument that the defendant makes, and the defendant is entitled to make that argument.”

Ellis agreed to reconsider whether Pelton’s testimony was necessary once Lindh actually called the reporter as a witness. But the argument against requiring Pelton to testify would have to be significant to outweigh Lindh’s right to a fair trial, Ellis said.

(U.S. v. Lindh; Media counsel: Stuart F. Pierson, Troutman Sanders LLP, Washington, D.C.) MD

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